Citation Nr: 0513612
Decision Date: 05/19/05 Archive Date: 06/01/05
DOCKET NO. 03-25 930 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Sioux
Falls, South Dakota
THE ISSUES
1. Entitlement to service connection for chronic obstructive
pulmonary disease (COPD).
2. Entitlement to a psychiatric disability, to include post-
traumatic stress disorder (PTSD) and depression.
REPRESENTATION
Appellant represented by: American Legion
ATTORNEY FOR THE BOARD
C. Moore, Associate Counsel
INTRODUCTION
The veteran had active service from October 1971 to March
1973.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 2002 rating decision of the Sioux
Falls, South Dakota Regional Office (RO) of the Department of
Veterans Affairs (VA). Having considered the veteran's
contentions in light of the record and the applicable law,
the Board finds that this matter is ready for appellate
review.
FINDINGS OF FACT
1. Chronic obstructive pulmonary disease was initially
demonstrated years after service, and has not been shown by
competent evidence to be causally related to the veteran's
active service.
2. Depression was initially demonstrated years after
service, and has not been shown by competent evidence to be
causally related to the veteran's active service.
3. The competent evidence of record does not establish that
the veteran has a mental disorder that is presumed to be
causally related to the veteran's active service.
4. The veteran is not diagnosed to have PTSD.
CONCLUSIONS OF LAW
1. Chronic obstructive pulmonary disease was not incurred
in, or aggravated by active service. U.S.C.A. §§ 1110, 1131,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2004).
2. A psychiatric disability, to include depression and PTSD,
was not incurred in, or aggravated by, active service, nor
may a psychosis be presumed to have been so incurred. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matter: VA's Duty to Notify and Assist the
Claimant
The veteran contends that he incurred COPD, PTSD and
depression as a result of active military service.
Prior to proceeding with an examination of the merits of the
claims, the Board must first determine whether the veteran
has been apprised of the law and regulations applicable to
this matter; the evidence that would be necessary to
substantiate the claims; and whether the claims have been
fully developed in accordance with the Veterans Claims
Assistance Act (VCAA) and other applicable law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).
The VCAA eliminates the concept of a well-grounded claim, and
redefines the obligations of VA with respect to the duties to
notify and to assist claimants in the development of their
claims. First, the VA has a duty to notify the veteran and
his representative, if represented, of any information and
evidence needed to substantiate and complete a claim for VA
benefits, as well as the development responsibilities of the
claimant and of the VA. VCAA, § 3(a), 114 Stat. 2096, 2096-
97 (2000). See 38 U.S.C.A. §§ 5102 and 5103 (West 2002). VA
will also request that the claimant provide any evidence in
their possession that pertains to the claim. 38 C.F.R.
§ 3.159(b) (2004). Second, the VA has a duty to assist the
veteran in obtaining evidence necessary to substantiate the
claim. VCAA, § 3(a), 114 Stat. 2096, 2097-98 (2000). See 38
U.S.C.A. § 5103A (West 2002).
A VA letter issued in August 2001 apprised the veteran of the
information and evidence necessary to substantiate his
claims, including that for PTSD. Such correspondence also
apprised him as to which information and evidence, if any,
that he is to provide, and which information and evidence, if
any, VA will attempt to obtain on his behalf. He was also
advised to send any evidence in his possession, pertinent to
the appeal, to VA. As such, the correspondence satisfied
VA's duty to notify the veteran, as required by Quartuccio v.
Principi, 16 Vet. App. 183 (2002), 38 U.S.C.A. § 5103 (West
2002) and 38 C.F.R. § 3.159 (2004).
The law provides that a VCAA notice, as required by 38 U.S.C.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. Pelegrini v. Principi, 18 Vet.
App. 112 (2004). Here, because the VCAA notice was provided
to the veteran prior to the initial AOJ adjudication denying
the claim, the timing of the notice complies with the express
requirements of the law as found by the Court in Pelegrini
II.
The Court in Pelegrini II also held, in part, that a VCAA
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. This new "fourth element" of
the notice requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1). See VAOPGCPREC 01-2004.
Examination of the August 2001 VA letter to the veteran
indicates that all four of the above components were
satisfied. The veteran was advised of what evidence would
support his claims for the disorders in question, as well as
of the essential components of a successful claim of service
connection: (1) evidence of an injury in military service or
a disease that began in or was made worse during military
service or one which would qualify for presumptive service
connection; (2) competent evidence of a current physical or
mental disability; and, (3) competent evidence of a
relationship between the veteran's current disability and the
in-service event. Pond v. West, 12 Vet. App. 341, 346
(1999); Rose v. West, 11 Vet. App. 169, 171 (1998). An
additional advisement as to PTSD claim substantiation was
also provided. The veteran was also advised that he should
provide any other evidence that he desired the RO to
consider, and was provided authorization forms for completion
in the event such records were in the nature of medical
records. The Board has found that the veteran was provided
every opportunity to identify and submit evidence in support
of his claims.
With regard to the duty to assist, the record contains the
veteran's service medical records, as well as VA treatment
and examination records. The veteran has been afforded the
opportunity for a personal hearing on appeal. The Board has
carefully reviewed the veteran's statements and concludes
that he has not identified any further evidence not already
of record.
The veteran has argued that his complete service medical
records have not been obtained. However, the record does not
substantiate the veteran's allegation. The service medical
records were first obtained by VA in August 1976, and a copy
of his DD 214 (Report of Separation from the Armed Forces) in
April 2004. As will be explained below, the veteran's
service medical records on file do not indicate any
suggestion, either by way of history or clinical examination,
to suggest that the records currently on file are not
complete. As will also be discussed below, veteran's
allegations of various in-service events, to include various
reports of medical events, have been evaluated as wholly
incredible.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claims. Essentially, all available evidence
that could substantiate the claims has been obtained.
The Merits of the Claims
The veteran seeks service connection for COPD, PTSD and
depression. His essential argument as to the three disorders
is that they stemmed from a service-entry inoculation by
"air gun;" that the inoculation caused him to have adverse
reactions; the adverse reactions resulted in him being
incapable of successfully performing his military duties;
which in turn led to him being singled out for harassment by
his fellow solders and the chain of command.
Having carefully considered the claim in light of the record
and the applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claims and the
appeal will be denied in whole.
The Law and Regulations
Service connection may be granted for disability or injury
incurred in or aggravated by active military service. 38
U.S.C.A. §§ 1110, 1131. The resolution of this issue must be
considered on the basis of the places, types and
circumstances of his service as shown by service records, the
official history of each organization in which the claimant
served, his medical records and all pertinent medical and lay
evidence. Determinations relative to service connection will
be based on review of the entire evidence of record. 38
C.F.R. § 3.303(a).
As a general matter, service connection for a disability on
the basis of the merits of such claim is focused upon (1) the
existence of a current disability; (2) the existence of the
disease or injury in service, and; (3) a relationship or
nexus between the current disability and any injury or
disease during service. See Cuevas v. Principi, 3 Vet. App.
542 (1992).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2002).
With regard to PTSD, requisite for a grant of service
connection is medical evidence establishing a diagnosis of
the disorder, credible supporting evidence that the claimed
in-service stressors actually occurred, and a link,
established by medical evidence, between the current
symptomatology and the claimed in-service stressors. 38
C.F.R. § 3.304(f) (2002).
With regard to the second PTSD element, that of an in-service
stressor, the evidence necessary to establish that the
claimed stressor actually varies depending on whether it can
be determined that the veteran "engaged in combat with the
enemy." 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. 3.304(d)
(2002). If it is determined through military citation or
other supportive evidence that a veteran engaged in combat
with the enemy, and the claimed stressors are related to
combat, the veteran's lay testimony regarding the reported
stressors must be accepted as conclusive evidence as to their
actual occurrence and no further development or corroborative
evidence will be necessary. 38 C.F.R. § 3.304(f) (2002).
Where a determination is made that the veteran did not
"engage in combat with the enemy," or the claimed stressor is
not related to combat, the veteran's lay testimony alone will
not be enough to establish the occurrence of the alleged
stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996);
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such
cases, the record must contain service records or other
statements as to the occurrence of the claimed stressor. See
West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki
v. Brown, 6 Vet. App. 91, 98 (1993). Once independent
verification of the stressor event has been submitted, the
veteran's personal exposure to the event may be implied by
the evidence of record. A veteran need not substantiate his
actual presence during the stressor event; the fact that the
veteran was assigned to and stationed with a unit that was
present while such an event occurred may strongly suggest
that he was, in fact, exposed to the stressor event. See
Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v.
Brown, 10 Vet. App. 307 (1997).
Chronic Obstructive Pulmonary Disease
On the veteran's report of medical history, taken in
conjunction with his August 1971 enlistment examination, the
veteran denied having a history of chronic or frequent colds,
sinusitis, asthma, shortness of breath, pain or pressure in
chest, or chronic cough, although he endorsed a history of
hay fever. On the corresponding report of medical history,
it was noted that the veteran's lungs and chest were normal.
The veteran's service medical records reveal that the veteran
was hospitalized for four days for an acute upper respiratory
infection in October 1971. In February 1972, he was again
hospitalized for one day for the same condition. Similarly,
in a March 1972 service medical record, the veteran
complained of headaches, chest pain, and coughs. A physical
examination revealed that the veteran's lungs had bilateral
rhonchi. In July 1972, the veteran was treated for a cold,
later ascertained to be allergic bronchitis. However, upon
radiographic examination by the service department in
December 1972, no pulmonary or respiratory abnormality was
noted. His separation physical examination indicates that he
had post-nasal drip, but is devoid of any mention of a
pulmonary disorder.
In light of the veteran's current account, the Board observes
that his service medical records are devoid of any mention of
an adverse reaction to any service-entry inoculation,
including any treatment or resulting hospitalization.
On the report of medical history, taken in conjunction with
his January 1973 discharge examination, the veteran reported
a history of asthma, shortness of breath, pain or pressure in
chest, and chronic cough. The examiner reported that the
veteran had asthma as a child, but had not experienced it
since age 14. He also reported that the shortness of breath
and cough were with the asthma attacks. Although the veteran
endorsed having had an "adverse reaction to serum, drug, or
medicine," the examiner noted that the veteran was allergic
to penicillin. Again, there was no reference to any incident
occurring as a result of a service-entry inoculation.
Also of relevance to the veteran's current accounts that he
received a medical discharge as a result of the claimed in-
service pulmonary treatment, the service discharge
examination also reflects that the veteran was then subject
to "elimination from [the] service," and his report of
separation indicates that he received a discharge under
honorable conditions.
A VA hospital discharge summary reveals that the veteran was
admitted to the hospital in April 1998 and discharged in
January 1999. One of his reported diagnoses included a
history of asthma. On physical examination, the veteran's
lungs were clear anteriorally and laterally. A VA hospital
discharge summary dated in May 2000 reflects that a physical
examination of the veteran's lungs found that they were clear
to auscultation. A VA hospital discharge summary indicates
that the veteran was in the hospital from June 2000 to August
2000. Pulmonary functioning testing indicated that he had
mild obstruction. Apart from its historical occurrence, none
of these reports indicate any mention of the
In an October 2000 VA preventive health screen, the veteran
reported that he was a current smoker who smoked four to five
cigarettes a day.
In the veteran's PTSD stressor statement, the veteran related
that in the fall of 1970 or 1971, he was inoculated with a
jet-gun at Ft. Dix, New Jersey. As a result, he indicated
that he was hospitalized and "almost died" from an upper
respiratory infection.
The veteran's chest was x-rayed in July 2003. The
radiologist reported that there was no evidence of pulmonary
congestion, and that there was no evidence of active
cardiopulmonary disease. In October 2003, the veteran
underwent a further VA examination, and reported that he had
a cough that sometimes produced a green or sometimes brown
or clear white sputum. He denied any hemoptysis and
indicated that although he did not have asthma as a child, he
currently did as an adult.
On physical examination, the veteran's lungs were clear to
bilateral auscultation and throughout. The examiner reported
that the July 2003 chest x-rays showed that the veteran had
chronic obstructive pulmonary disease. The examiner
diagnosed the veteran with chronic obstructive pulmonary
disease, with asthmatic component. It terms of the etiology
of the veteran's COPD, the examiner stated:
It is my opinion that this is less than
likely related to his service time. He
was treated for bronchitis one time while
he was in the service. I do not note
anywhere that there was any mention that
he had been given any shots with an
adverse reaction (and this would not be
the expected type of adverse response for
this), nor do I see that his medical
record through the Veterans
Administration notes that he is allergic
to any type of flu shots. In addition,
there is no mention in his service record
that he was hospitalized and /or in an
oxygen tent. It is more likely than not
that the chronic obstructive pulmonary
disease is related to his continued and
unrelenting history of smoking
cigarettes.
The preponderance of the evidence is clearly against the
claim of service connection for COPD. Firstly, there is no
question that the veteran has a current diagnosis of the
disorder he seeks to connect to service, as evidenced by an
August 2000 hospital discharge summary and the report of a VA
examination in October 2003
However, there is nothing in the record indicating the
presence of an in service event. Firstly, the veteran's
account of such severe medical complications following his
initial innoculations during basic training is wholly
incredible. The service medical records do not substantiate
that the veteran was hospitalized for such a disorder during
basic training; nor that he received any treatment for an
adverse reaction following such an innoculation at anytime
during his military service.
While the veteran nonetheless maintains that these events
occured, it is inconceivable that such grave complications
would not have been recorded in his military medical records
and followed up throughout the course of his military tenure,
given that the contemporaneous treatment record was generated
with a view towards ascertaining the veteran's readiness for
the rigors of military service. Masors v. Derwinski, 2 Vet.
App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618
(1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (The Board must
assess the credibility and weight of all the evidence,
including the medical evidence, to determine its probative
value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant.).
While the veteran was treated for an upper respiratory
infection, sinusitis, and allergic bronchitis in service, the
then-contemporary service medical records, including chest X-
ray examination, are negative for pulmonary disease.
Further, it is significant to point out that COPD was not
demonstrated until 2000, almost 30 years subsequent to
service.
Most critically, there is no competent evidence of linkage
between any in-service treatment and the current COPD. As
noted, a VA examiner, in October 2003, opined that the
disorder was not etiologically related to service. Rather,
the examiner attributed such disability to the veteran's
history of smoking.
In this regard, the Board observes that there is no competent
medical evidence to the contrary. By "competent medical
evidence" is meant in part that which is provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions. 38 C.F.R. § 3.159(a). That is, the only medical
opinion of record is to the effect that the veteran's current
chronic obstructive pulmonary disease is not etiologically
related to his military service.
Although the veteran asserts that his current COPD disability
is related to his in-service reports of upper respiratory
infections, sinusitis, shortness of breath, asthma, and
cough, he is not competent to provide an opinion requiring
medical knowledge, such as a question of medical causation.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The October
2003 medical opinion is of greater probative value than the
veteran's statements in support of his claim. Accordingly,
the Board finds that the competent evidence of record fails
to establish that the current COPD is related to the
veteran's active military service, and his claim must be
denied.
Psychiatric Disability, to include PTSD and Depression
On the report of medical history, taken in conjunction with
his January 1973 discharge examination, the veteran reported
a history of frequent trouble sleeping, depression or
excessive worry, and nervous trouble. The examiner also
reported that the veteran reported that he had trouble
getting to sleep (i.e., he did not sleep soundly) and he was
nervous and experienced tension in the Army.
A VA hospital discharge summary dated in May 2000 reflects
that the veteran was diagnosed with depression, without
reference to any incident of military service. A VA hospital
discharge summary indicates that the veteran was in the
hospital from June 2000 to August 2000, and diagnosed with
substance abuse in remission. There was no reference to any
incident of the veteran's military service. In an October
2000 VA preventive health screen, the examiner reported that
the veteran screened negative for PTSD.
In the veteran's PTSD stressor statement, he related that in
the fall of 1970 or 1971, he was inoculated with a jet-gun at
Ft. Dix, New Jersey and, as noted above, he indicated that he
was hospitalized and "almost died" from an upper
respiratory infection. This later led to chronic treatment
and a diagnosis by the VA of COPD. He also indicated that he
was treated for depression during his basic training at Ft.
Dix and that since that time he had been diagnosed with
chronic depression and PTSD by the VA.
Further, the veteran related that he was verbally and
physically abused by training staff and frightened with the
eventuality of service in Vietnam. He stated that he had
recurring physical maladies that made his training unbearable
and the resulting physical and mental abuse that he suffered
by training staff intolerable and psychiatrically
debilitating. The veteran indicated that he was continually
harassed and threatened with transfer to Vietnam and verbally
and mentally abused by his company commander when he was
transferred to his permanent duty station in Augsburg,
Germany. The veteran also indicated that he believed that he
contracted hepatitis while he was in Germany. He reported
that all of these traumatic experiences had left him in a
continual state of anxiety with panic attacks, a cognitive
disorder, and chronic pain syndrome, all of which he was
being treated for at the VA.
The veteran also underwent a VA PTSD evaluation in October
2003. The veteran reported that since military service, he
had severe social isolation and a paranoid distrust of other
people; that he avoided crowds and any social interaction
with more than one person. He also indicated that he had
panic attacks, claustrophobic reactions in small dark places,
and feelings of depression. He also reported poor sleep
(only one to two hours a night), intrusive thoughts, and
nightmares. He felt argumentative and angry, but never had
been violent. He indicated that he had never been suicidal,
but that he was anxious around others, and was startled
easily by loud noises.
After mental status examination, the examiner reported that
he could not find any verification of the veteran's claimed
stressors and even if he could authenticate them, he was not
certain that they would qualify as a producer of PTSD, even
though he presented with a great deal of anxiety.
The examiner observed that while the veteran claimed that he
underwent psychiatric treatment during military service, such
an account was not supported by the record. While the
examiner observed that the veteran displayed classic PTSD
symptoms, but that they presented without a clear connection
to verifiable stressors. The examiner diagnosed the veteran
with major depression, panic disorder with agoraphobia, and
personality disorder, not otherwise specified with dependent
and schizoid traits. The examiner commented that:
I believe that if he were making a claim
for depression and anxiety disorder that
he believes he was treated for in the
service that there could be some reason
for adjudication to see a connection.
However, the case for post-traumatic
stress disorder does not appear to be
the most accurate diagnosis of this
unfortunate individual's difficult life
and emotional disorder.
The preponderance of the evidence is clearly against the
claims relative to PTSD and depression.
As noted above, in order to establish service connection on a
direct basis, the veteran must provide evidence of a current
disability, an in-service injury, and a nexus between the
current disability and an in-service injury. Firstly, while
the veteran does have a current diagnosis of depression, the
veteran's account of in-service events leading to such
depression (i.e., illness after "air-gun" inoculation;
followed by hospitalization and inability to perform duty as
a result of such illness; in turn leading to being singled
out by the chain-of-command and in-service psychiatric
treatment) is wholly unsupported by record.
As noted, the record does not support the veteran's
contentions of illness after he was inoculated. The
contemporaneous service medical records do not indicate that
the veteran ever complained of or was treated for such
complaints or any other in-service psychiatric disability.
Moreover, it is significant to point out that the evidence of
record establishes that the veteran was not first clinically
diagnosed with and treated for depression until 2000, many
years after his discharge from service.
The October 2003 VA examiner's observation as to a link
between the veteran's current disorder and his in-service
treatment is clearly premised upon the veteran's account of
having in-service psychiatric treatment, which is wholly
unsupported in the record. The Board notes that the veteran
could be entitled to service connection on a presumptive
basis if there is evidence that psychosis was demonstrated
within one year of separation from service. However, the
Board notes that there is no evidence that establishes that
psychosis was demonstrated within one year of separation from
service or that the veteran, in fact, has a current psychosis
disability. Significantly, on examination in October 2003,
the examiner indicated that there was no evidence that the
veteran had psychotic determinacy. Thus, the Board concludes
that the veteran is also not entitled to a grant of service
connection for a psychiatric disability, on a presumptive
basis.
In this regard, the only evidence of record is to the effect
that the veteran's current psychiatric disability is not
attributable to his military service nor was aggravated by
such military service. Despite the veteran's assertions, he
is not competent to provide an opinion requiring medical
knowledge, such as a question of medical causation. Espiritu
v. Derwinski, 2 Vet. App. 492 (1992). Thus, the Board finds
that the contemporaneous service medical evidence, and post
service medical evidence, are of greater probative value than
the veteran's statements in support of his claim.
Accordingly, the Board finds that the preponderance of the
evidence is against the veteran's claim for service
connection for a psychiatric disability, to include
depression, panic disorder with agoraphobia, and personality
disorder.
As to PTSD, the preponderance of the evidence is likewise
against the claim. As noted, the October 2003 VA examiner
did not so diagnose the veteran, and there is otherwise no
diagnosis of record.
In this regard, there is no evidence to the contrary. That
is, the only medical opinion of record is to the effect that
the veteran does not have a current PTSD disability that is
related to service. Despite the veteran's assertions, he is
not competent to provide an opinion requiring medical
knowledge, such as a question of medical diagnosis. Espiritu
v. Derwinski, 2 Vet. App. 492 (1992). Thus, the Board finds
that the contemporaneous service medical evidence, and post
service medical evidence, are of greater probative value than
the veteran's statements in support of his claim. As such,
the Board finds that the preponderance of the evidence is
against the claim of service connection for PTSD.
ORDER
Entitlement to service connection for chronic obstructive
pulmonary disease (COPD), is denied.
Entitlement to a psychiatric disability, to include post-
traumatic stress disorder (PTSD) and depression, is denied.
____________________________________________
Vito A. Clementi
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs